Floyd Abrams is one of, if not the most famous First Amendment lawyers in the country. He gets and deserves a ton of respect. His most famous case was defending the NY Times against the US government when Richard Nixon tried to block the NY Times from publishing the Pentagon Papers. And he’s been involved in many other seminal First Amendment cases as well. That doesn’t mean he doesn’t sometimes make mistakes — like the time he insisted that SOPA wouldn’t violate the First Amendment because it was censorship for a good cause (i.e., for his clients at the MPAA). Or the time he falsely accused Wikileaks of indiscriminately leaking information that was actually being more carefully distributed.
And while I totally agree with Abrams in claiming that Donald Trump is the “greatest threat to the First Amendment since the passage of The Sedition Act of 1918,” I disagree with his thoughts on how to fight it. His argument is that the press that Trump has been insulting should sue Trump for defamation:
“Trump has denounced people in language that punctuated his campaign,” Abrams tells The Hollywood Reporter in a follow-up conversation. “If what he said is not pure protected opinion, then the press side ought to take a hard look and see if they have a basis for commencing litigation. They have to think creatively as no candidate in living memory has denounced the press as he has; no candidate has banned journalists from covering him because they didn’t like the tone or substance of what they are saying. And so, press lawyers ought to bear in mind that if things get rough, if the relationship is one of constant denigration and threats, it may be time for journalists to think about using libel laws in way that is constitutional.”
Admittedly, he has a lot of caveats in there, but it’s still a silly suggestion and would almost certainly backfire in a big way. Yes, Trump himself is somewhat famous for his bogus defamation threats addressed to the media, as well as his claimed plans to “open up libel laws” as President. So, you could argue that there’s some potential irony or karmic retribution were he to be hit with a defamation lawsuit by the very reporters he’s been threatening for so long.
But it’s also a strategy that seems highly likely to backfire in any number of ways. Suing a sitting President is just difficult, first of all. Second, the bar to defamation is quite high — as it should be — and it’s difficult to see how Trump has crossed that line at all, even as he falsely seems to believe the bar for defamation is much lower. Third, this is very much stooping to his level, and if Trump has shown anything this election year, it’s that when you stoop to his level in the mud, he’ll drown you in it, because he knows how to play that game better than anyone else. Anyone who did this would almost certainly be hit with a countersuit (at the very least) and would have to prove “actual malice” against a sitting President. They’d also have to point out actual false statements of fact that Trump made, rather than his usual ridiculous hyperbole.
Trump is, absolutely, a huge threat to the First Amendment. And lots of people and organizations need to be ready, willing and able to fight back on any attempt by the Trump administration to harm the First Amendment. But playing the low game of suing for defamation is the wrong way to go about it, and will be seen by his supporters as yet more evidence of the press trying to muzzle Trump.